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Court of AppealPartially AllowedCriminal Appeal E086 of 2023· [2025] KECA 2249 (KLR)

Kahindi v Republic

Court of Appeal
19 December 2025
AMA.K. MurgorPNP. NyamweyaFOFred Ochieng
2,872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to shorten a 30-year sentence but ordered that time already spent in custody before sentencing be deducted from it.

What this practically means

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Executive summary

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This is a second appeal by Safari Kaingu Kahindi against a 30-year imprisonment sentence for grievous harm contrary to section 234 of the Penal Code, imposed on a plea of guilty by the Chief Magistrate's Court at Malindi and upheld on first appeal by the High Court (Githinji J) on 10 July 2023. The appellant raised three grounds: failure to consider his mitigation under sections 216 and 329 of the Criminal Procedure Code, failure to observe sentencing policy objectives, and failure to credit his pre-trial custody period under section 333(2) CPC and the Sentencing Policy Guidelines; he also cited his age by reference to WHO life expectancy. The Court of Appeal (Murgor, Nyamweya and Ochieng JJA) held that under section 361(1)(b) CPC, as clarified by the Supreme Court in Republic v. Mwangi, severity of sentence is a matter of fact and barred on second appeal except where the High Court enhanced the sentence. The complaints on mitigation, age and sentencing objectives were factual and precluded; in any event both courts below had expressly considered his mitigation, noting his lack of remorse and absconding during trial. However, the court found the pre-trial custody point to be a matter of law and directed that the time spent in custody before sentencing be factored into the computation of the 30-year sentence under the proviso to section 333(2) CPC. The appeal was accordingly partially allowed to that limited extent, with all other grounds dismissed. The judgment was delivered under Rule 34(3) of the Court of Appeal Rules following the death of Ochieng JA before delivery.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on a second appeal against sentence

Holding

The Court can only interfere with sentencing when a question about the legality of a sentence has been raised; severity of sentence is a matter of fact and precluded on second appeal, per section 361(1)(b) CPC as clarified by the Supreme Court in Republic v. Mwangi.

Reasoning

Section 361(1)(b) CPC confines second appeals to matters of law. The Supreme Court in Republic v. Mwangi clarified that severity of sentence is a matter of fact, barring the Court of Appeal from sentence questions except where the High Court enhanced the sentence. The appellant's complaints on mitigation, age and sentencing objectives are factual and were not raised in his trial mitigation.

p. 4
02

Whether the appellant's mitigation was considered by the courts below

Holding

Both the trial Court and the High Court expressly took into account the appellant's mitigation; the ground fails.

Reasoning

The trial magistrate's sentencing ruling expressly recorded consideration of the mitigation, prosecution submissions, the offence circumstances and the P3 form. The High Court found no grounds to interfere with the sentencing discretion. The appellant's lack of remorse and absconding during trial were relevant factors properly weighed.

p. 5
03

Whether the pre-trial custody period was factored into the sentence

Holding

The appellant is legally entitled to have the period spent in custody before sentencing factored into his 30-year sentence; a direction to that effect was issued.

Reasoning

The proviso to section 333(2) CPC mandates that a sentence take account of time held in custody prior to sentencing. The record shows the appellant spent time in custody before release on bond and again after absconding. The court directed that this period be factored into the computation of the sentence.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and cannot interfere with findings of fact of the lower courts unless they considered matters they ought not to have, or failed to consider matters they should have, or were plainly wrong.
  • Severity of sentence is a matter of fact, and on a second appeal the Court of Appeal is barred from determining questions relating to sentences except where such sentence has been enhanced by the High Court.
  • Where an accused has been held in custody prior to sentencing, the sentence must take account of the period spent in custody under the proviso to section 333(2) of the Criminal Procedure Code.

Court orders

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  1. 1.Direction that the period the appellant spent in custody before sentencing be factored into the computation of his 30-year sentence in tandem with the proviso to section 333(2) of the Criminal Procedure Code
  2. 2.Appeal against sentence partially allowed to that extent; all other grounds dismissed
On appeal from
High Court of Kenya at Malindi
Criminal Appeal No. 62 of 2018
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kahindi v Republic", Case Analysis (2025). Criminal Appeal E086 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2249/eng@2025-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.